February 20, 2009

Because I am always intrigued by the intersection of sentencing issues and religious issues, this local sentencing story out of California caught my eye:

A pastor found guilty of violating a city law created to provide an 8-foot buffer between anti-abortion protesters and women entering clinics was sentenced to 30 days in jail and ordered to stay 100 yards away from the clinic at which he was arrested for the next three years.

The Rev. Walter Hoye, the first person charged and found guilty of the city's two-year-old law must also pay $1,130 in fines and remain on probation for three years after either serving his 30 days in county jail or entering an alternative program run by the sheriff's department.

The ruling, which was made by Alameda County Superior Court Judge Stuart Hing, came amid a charged atmosphere in the courtroom packed with both abortion-rights and anti-abortion advocates....

Hoye's case, a misdemeanor charge, has garnered national attention from anti-abortion supporters, many of whom traveled from as far as Dallas to speak in support of the pastor, who they said was having his First Amendment rights taken away....

But Alameda County Deputy District Attorney Robert Graff, who successfully tried the case, argued that Hoye was not an innocent man standing on a sidewalk with a sign but someone who violated a city law. "To suggest that he was merely holding a sign on the sidewalk does not speak to the totality of what is going on here," Graff said. "This is a balancing of rights here. These people's rights have to be balanced as well."

Hoye was arrested last May after he approached two women and their escorts who were trying to enter the Family Planning Specialists Medical Group in Jack London Square. Hoye was originally charged with four counts of violating the city law but was found guilty last month of two counts. Hoye's defense attorneys, paid for by the Life Legal Defense Foundation, argued, at times with tears in their eyes, that the law was unconstitutional and that a punishment of jail was cruel and unusual.

While Graff agreed Hoye should not be placed in jail, he asked Hing to place the pastor on three years probation with an order to stay 100 yards away from the clinic. If Hoye did not agree to that, Graff said he should be sent to county jail for two years.

Hing asked Hoye if he would abide by the ruling during court Thursday. The pastor refused, saying he could not follow a law he found to be unjust. As a result, Hing sentenced Hoye to 30 days in jail with the option of entering a sheriff work-release program that allows him to do sheriff-sponsored community service in exchange for jail time.

The idea that the "punishment of jail was cruel and unusual" under these circumstances provides a little window into an Eighth Amendment idea that's been kicking around my head a lot since the Heller ruling. Specifically, I have been giving thought to the idea that there may be constitutional limits under the Eighth Amendment concerning how and/or how severely the state can punish conduct that comes within the penumbra of, but may not be fully constitutionally protected by, a particular Bill of Rights amendment.